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Case Laws
Showing 121 to 140 of 9344 Records
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2008 (12) TMI 715 - MADRAS HIGH COURT
Whether the penalty levied under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 is sustainable, when the assessment order is one made to the best of judgment under section 12(2) of the Act?
Held that:- In the present case, the accounts filed by the assessee were not accepted and that is why, the assessing authority made an assessment to the best of its judgment, which is what the Appellate Assistant Commissioner found in his order, where he has stated that the details were from the account books of the appellants plus 15 per cent estimation towards freight and unloading charges and therefore, rightly held that the assessment was one under section 12(2) of the TNGST Act. The question is answered in favour of the assessee. The tax case (revision) is, accordingly, allowed.
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2008 (12) TMI 714 - KARNATAKA HIGH COURT
Amendments made to section 2(4) of the Karnataka Tax on Luxuries Act, 1979 by Act No. 5 of 2000 - Whether unconstitutional and beyond the powers of the State Government?
Held that:- The inclusion of "club" in the definition of "hotel" and the Explanation inserted to section 2(4) of the Act by way of an amendment with retrospective effect are not legal, valid and correct; therefore point is answered accordingly. Appeal allowed.
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2008 (12) TMI 713 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... ose goods for its own use, not for sale. The company has no moto to make profit by selling those goods. His statement on behalf of the company is accepted. When respondent No. 1 accepted that the company has no intention to sell the disputed goods in order to make profit, the imposition of penalty is unwarranted. Moreover, respondent No. 2 observed that the petitioner came to know about the seizure after receiving four copies of intimation despatched to them by United Bank of India on August 18, 2007 and August 22, 2007. When there is a gap of communication of the importation of goods as well as when there was no intention to sell the disputed goods, the imposition of penalty is unlawful. Accordingly, we set aside the order of imposition of penalty dated February 26, 2008 and subsequent revisional orders dated April 3, 2008 and June 20, 2008. Application is allowed, but under the facts and circumstances of the case no order as to costs. PRADIPTA RAY J. (Chairman). - I agree.
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2008 (12) TMI 712 - KERALA HIGH COURT
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... ... ..... and, the Tribunal has not disturbed the finding of the first appellate authority relying on the bye-laws, accounts, receipts and final accounts submitted by the petitioner to the grower-members that there was no purchase by the petitioner from members. We find that the bye-laws only provide for marketing of agricultural produce of members of the petitioner-society. Even though the Government Pleader pointed out that besides the auction sale, the petitioner has made sales to dealers in the State for some years, we do not think it makes any difference because so long as there is no purchase by the petitioner from the growers, tax on first purchase of cardamom cannot be levied on the petitioner. In view of the clear-cut findings on the facts by the first appellate authority which are consistent with bye-laws of the society produced by senior counsel, we allow the tax revision cases by reversing the order of the Tribunal and restoring the orders of the first appellate authority.
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2008 (12) TMI 711 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... cts and circumstance that though the STO/CCD had legal authority to seize the goods just after expiry of 48 hours time of the detention but when he did not do that and extended the time till December 8, 2007 he ought to have considered the documents produced by that date. When it was/is the material case of the petitioner that before the seizure on December 8, 2007 the way-bill was produced the confirming authority ought to have adjudicated the seizure on consideration of that point also. It now appears to us that the impugned order of confirmation of the orders of seizure and imposition of penalty suffers both from illegality and material irregularity and, therefore, liable to be set aside. Taking all these into account the application stands succeed. The impugned orders of seizure, imposition of penalty and confirmation thereof all are set aside and the demand notice issued therefor stands quashed. No orders as to costs. DEB KUMAR CHAKRABORTI (Technical Member). - I agree.
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2008 (12) TMI 710 - KERALA HIGH COURT
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... ... ..... n fact that rubber wood is a highly perishable softwood which can be made into durable hardwood through complicated process involving chemical impregnation. In fact untreated rubber wood is highly perishable and so much so, it is generally used for making packing cases, plywood, as firewood, etc. Since rubber wood is a common item used for making packing cases, the Government wanted to avoid unnecessary litigation and that could be why it is specifically brought as an item falling under the category softwood through amendment. Since rubber wood answers the description of softwood , we hold that the amendment is only clarificatory in nature and exemption was available from the date of original Notification, i.e., S.R.O. No. 1090/1999. We, therefore, allow the revision case by declaring the petitioner 39 s eligibility for exemption and vacate the order of the Tribunal with direction to the officer to revise the assessment granting exemption on purchase turnover of rubber wood.
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2008 (12) TMI 709 - MADRAS HIGH COURT
Whether the Sales Tax Appellate Tribunal is justified in holding that the Notification No. II(1)/CTRE/206/77, dated September 7, 1977 issued under section 17 of the TNGST Act, 1959 exempting tax payable under the said Act on the sales by canteens run by a Managing Committee or Co-operative Society of State or Central Government servants on a no-profit no-loss basis for the benefit of the said State or Central Government employees is not applicable to Corporation staff in spite of G.O.Ms. No. 600 declaring them as Government servants?
Held that:- The Tribunal was justified in negativing the plea raised by the petitioner that the staff of the Madras Corporation are also "Government servants" and as such they are entitled to the exemption granted by the Government to the servants of the Union as well as State. Accordingly, substantial question of law is answered against the petitioner.
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2008 (12) TMI 708 - MADRAS HIGH COURT
Refusal to accept the stock variation - Held that:- Remand the matter to the assessing officer who shall examine the issue of stock variation in the light of the reconciliation statement and pass orders in accordance with law.
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2008 (12) TMI 707 - MADRAS HIGH COURT
Whether this court has no jurisdiction to entertain a writ petition challenging the proceedings initiated by a competent authority, appointed under the provisions of the Kerala General Sales Tax Act, 1963?
Held that:- This court is of the considered view that the contention of the learned counsel appearing on behalf of the respondents that this court does not have the jurisdiction to entertain the writ petition is devoid of merits. Since the petitioner is based at Chennai and a part of the cause of action had arisen within the jurisdiction of this court, the preliminary objection raised on behalf of the respondents, with regard to the jurisdiction of this court, cannot be sustained.
From the records available, it is seen that the writ petition had been admitted by this court, on January 10, 2003, and rule nisi had been issued calling for the records relating to the matter. In such circumstances, in view of the limited relief sought for by the petitioner and in the interest of justice, this court is inclined to issue a direction to the first respondent, without going into the merits of the case, to comply with the request of the petitioner, within a specified period.
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2008 (12) TMI 706 - MADRAS HIGH COURT
Whether the Sales Tax Appellate Tribunal was correct in their conclusion that the chemicals used in the process of tanning raw hides and skins involves transfer of property and liable for tax under section 3B of the Tamil Nadu General Sales Tax Act, 1959?
Held that:- Even though the learned counsel has produced before us the process chart, the fact remains that those particulars were not produced before the authorities below. The appellate authority simply stated that transfer of property can take place in any form but however did not give any factual finding as to how the transfer of property took place in the present case. Therefore we are of the considered opinion that the matter requires to be considered by the assessing authority afresh.
Accordingly we set aside the order dated May 25, 2000 of the Sales Tax Appellate Tribunal and the matter is remitted to the assessing authority for fresh consideration. The petitioner is directed to produce materials before the assessing authority in support of their contention that there was no transfer of property involved in the process and the chemicals were completely washed away in the process and as such acted merely as a "catalyst". The particulars so furnished by the assessee has to be considered by the assessing officer and a factual finding should be recorded with due opportunity to the petitioner. Since the matter pertains to the assessment year 1995-96, the assessing authority is directed to decide the issue as expeditiously as possible and in any case, within a period of three months from the date of receipt of a copy of this order.
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2008 (12) TMI 705 - ALLAHABAD HIGH COURT
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... ... ..... Tribunal is based on any proper basis? The learned standing counsel has filed supplementary affidavit in which he has filed a copy of amended eligibility certificate which was amended on February 9, 1994 and shows that the investment made by the industry was for a sum of Rs. 106.85 crores. Thus the Tribunal has rightly granted the benefit of the notification dated July 27, 1991 under which the petitioner has been granted 100 per cent exemption on account of the fixed capital investment of the unit for more than Rs. 50 crores. In view of the facts and circumstances of the case, no question of law arises and the impugned order of the Tribunal calls for no interference by this court. The revision is dismissed. No costs.
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2008 (12) TMI 704 - MADRAS HIGH COURT
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... ... ..... ssued a consolidated notice which is unsustainable in law. Even though the petitioner has filed the said application under section 55 of the Act, this court is of the considered view that non-issuance of separate notice for every assessment years makes the assessment order vitiated. Hence, the orders of the assessment impugned in these writ petitions are liable to be quashed. Accordingly, the same are quashed. The respondent is directed to issue separate notice within a period of two weeks from the date of receipt of a copy of this order and on receipt of the same, the petitioner is directed to submit their explanation and documents, if any, within a period four weeks thereafter. After receipt of the said documents from the petitioner, the respondent is directed to consider the same, hear the petitioner and pass order within a period of four weeks thereafter. The writ petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
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2008 (12) TMI 703 - KARNATAKA HIGH COURT
Whether petitioners entitled to tax exemption under the Karnataka Sales Tax Act, 1957 ?
Held that:- The appellants were justified in issuing the endorsement to them stating that they are not entitled for the benefit of exemption from payment of tax exemption that was impugned in the writ petitions and the learned single judge has erroneously quashed the same by wrongly applying the Government order which has no application to the fact-situation and further the observation of the learned single judge that the State Government estopped from taking the plea that the exemption notification not applicable after the notification issued under the provisions of the KVAT Act, suffers from error in law.
The learned single judge is not correct in holding that in the absence of implied or express repeal of the 1993 notification issued under section 8A(1) of the KST Act, the State Government is estopped from contending that the respondents are not entitled to claim tax exemption. Such a contention of the respondents is contrary to the decision in the case of Mathra Parshad and Sons v. State of Punjab reported in [1961 (12) TMI 63 - SUPREME COURT OF INDIA] relied upon by the learned Additional Government Advocate to contend that there is no promissory estoppel against the Government and the exemption notification applied to the respondents/hotels is not legal and valid. For this reason also the impugned order is liable to be set aside.
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2008 (12) TMI 702 - UTTARAKHAND HIGH COURT
Notification No. 698/XXVII (8) Commercial Tax (VAT)/ 2007, dated November 14, 2007 - whether is illegal, ultra vires and void?
Held that:- There is no illegality in issuing the impugned notification dated November 14, 2007, rescinding the earlier notification dated January 9, 2006. The present case does not relate to any issue relating to Central excise or income-tax. Apart from this, what is most important in this case is that in pursuance of the industrial policy of 2003, the petitioner had already complied and got allotted the plots in industrial area of State in the year 2005 to set up its factory, while notification dated January 9, 2006, relating to exemption in Central sales tax, was issued in the year 2006. After the factory has been established, the petitioner cannot say that he was allured in setting up the industry only for the reason that the Government had promised reduced rate of Central sales tax, notification in respect of which was in fact issued subsequent to the establishment of the factory.
The cases referred to on behalf of the petitioners do not relate to industries, which were set up before the promise was given relating to the exemption in the tax. Therefore, in the opinion of this court, on the facts and circumstances of the case there is no question of violation of doctrine of legitimate expectation, nor is the Government in the present case bound by principle of promissory estoppel, as the impugned notification was issued only consequent to the amendment in section 8 of the Central Sales Tax Act, 1956, vide Tax Laws (Amendment) Act, 2007. Appeal dismissed.
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2008 (12) TMI 701 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... TC 13 (SC) 1978 4 SCC 271. The Calcutta High Court accepted the proposition that if the freight charged is an identifiable separate element it does not normally form part of the composite sale price. Upon careful analysis of the terms and conditions of the contract, together with other relevant documents like invoices, the delivery challan, stores-receipt vouchers we find that sale price did not include freight and insurance charge and that sale in the legal sense was completed at the time of issue of despatch clearance and that the purchaser was liable to pay the freight at the agreed rate for obtaining physical delivery of the goods (insulators). For the reasons as discussed hereinabove we set aside the impugned assessment order, appellate order and the revisional order so far as those orders imposed sales tax on the freight and insurance charge. Application is allowed to the extent indicated above. No order as to costs. DEB KUMAR CHAKRABORTY (Technical Member). - I agree.
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2008 (12) TMI 700 - HIMACHAL PRADESH HIGH COURT
Whether the action of respondents charging the enhanced rate of tax of 25 per cent for the sales effected before February 1, 1979, is valid, since the enhancement in the rate of tax from 10 per cent to 25 per cent came into operation with effect from February 1, 1979 in view of the letter and instructions Memo. No. Ft. -37-4/73/iv dated May 21, 1980?
Whether the sale of the forest by auction is complete at the fall of hammer or at the time of receiving royalty in instalments as part payment of consideration and the liability of sales tax accordingly?
Whether interest is chargeable on the said payment if made in instalment and tax accordingly deposited?
Held that:- We answer question No. 2 as Sale of forest, in question, completed not at the fall of the hammer, but on expiry of the 30-day period from the date of auction. This 30-day period from the date of sale of auction expired on November 5, 1978, and, therefore, the sale was complete on November 6, 1978.
Coming to question No. 1. When the sale was complete on November 6, 1978, the rate of tax prevailing on that date, i.e., 10 per cent of the sale proceeds was applicable and the liability of the dealer, i.e., Divisional Forest Officer, was to pay tax at the said rate.
Question No. 3 becomes immaterial and irrelevant in view of our answer to question No. 2.
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2008 (12) TMI 699 - KARNATAKA HIGH COURT
Whether non-competent authority is delving into the affairs of the petitioner in respect of the concluded assessment for the years April 2005-March 2006, April 2006-March 2007, April 2007-March 2008, by virtually holding a roving enquiry into the concluded assessment
Held that:- No reason to interfere with the impugned notices. It is open to the petitioner to make available the records or books of account or the requirements as intimated to the petitioner under the provisions of the Act by the "prescribed authority" or the "competent authority" unless the requirement of the petitioner is one which compels him to act beyond the provisions of the Act. Submission of Sri Sarangan, learned Senior Counsel, that mere change of opinion on the part of any competent authority cannot be a ground for proceeding under section 39 is also not required to be examined as the petitioner was not issued any notice under section 39 of the Act, but the present enquiry appears to be for the satisfaction of the prescribed authority whether the assessment already concluded warrants reassessment or otherwise.
It is open to the petitioner to pursue other remedies as and when required and as available in law. Otherwise this writ petition is dismissed.
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2008 (12) TMI 698 - CALCUTTA HIGH COURT
If the dealer has failed to comply with the provisions in sub-section (2) of section 23, he would not get any benefit to register as dealer under the West Bengal Value Added Tax Act, 2003 in question from the date of the application which he has filed?
Held that:- It appears from the said rule that the dealer has to make an application within the time-limit mentioned in section 23(2). In the instant case, it appears that the dealer has failed to apply within the time mentioned in section 23(2) and the certificate of registration shall be made valid from the date of incurring liability which has already been defaulted by the dealer as it appears from the facts in question, and, further it has been specifically stated, in case such application made after the said time-limit, certificate for registration shall be valid from the date of order of granting registration.
In the facts and circumstances of the case, such rule has been prescribed by the authority which has been given authority under section 114 of the VAT Act and furthermore, under section 23(2) of the said Act. Therefore, no infirmity in the said rule which has been framed by the authority without taking into consideration the moot and reasons as has been stated for enacting the Act in question.Accordingly, in our considered opinion, there is no violation by the said authority in framing of such rule and, thereby, it cannot be said that there is any violation of the Act in question or any article of the Constitution of India. Therefore, we cannot declare that the said rule 6(2) is ultra vires in the facts and circumstances of the case.
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2008 (12) TMI 697 - PUNJAB AND HARYANA HIGH COURT
Whether the petitioner having been treated to be eligible, could be denied the benefit of investment after the date of unit having been put in the negative list?
Held that:- Admittedly, on the date of commercial production and also on the date of issue of entitlement/exemption certificate, the petitioner was in the negative list and could not be considered to be eligible unless applicability of notification dated December 16, 1996 was confined to units which started investment after the said date.
Once the petitioner has been treated to be eligible, there was no valid reason to further classify the benefit of investment up to the date of amendment, putting the unit in the negative list. Appeal allowed.
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2008 (12) TMI 696 - HIMACHAL PRADESH HIGH COURT
Amending notification dated July 23, 1999, whereby converted timber has been included within the meaning of "timber" challenged - Held that:- Timber and timber trees", as per dictionary meaning as also the interpretation of these words by various judgments, including those of the Supreme Court, are those trees or the wood of those trees which are used as material for construction of houses or for manufacture of items of furniture. Trees, the wood of which is not used for the aforesaid two purposes, are not timber trees nor is the wood of such trees timber.
The Government, which granted concession vide notification dated February 7, 1992, on its own could not (sic) recall that notification or amend the same with a view to narrowing down or expanding its scope.Therefore, it cannot be said that the amending notification dated July 23, 1999 is ultra vires. Appeal dismissed.
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